Friday, June 22, 2007

June 2007 might be remembered (but probably won't be) as a good month for symbolically and substantively appropriate results in my profession's occasionally effective ability to police itself.

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On the one hand, we have the very appropriate disbarment of North Carolina rogue prosecutor Michael Nifong.

Several readers have asked me in emails or comments for my take on Nifong's prosecution of the Duke lacrosse players, but I had nothing to add to what was being said, effectively, by others. The only thing I have to say now is: Good riddance to bad, bad rubbish.

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And on the other hand, there's William P. Smith — the lawyer who declared that the judge before whom he was appearing was "a few French fries short of a Happy Meal" — about whom Iandothers blogged at length in May. (See also here and here on the question whether TV lawyer shows like "Boston Legal" are contributing to such incidents.) After reading the transcript, I wrote before Mr. Smith's appearance at the resulting show-cause hearing on possible civil-contempt charges against him:

Mr. Smith ought to be glad I'm not on an Illinois bar committee reviewing his license. I'm a traditionalist and a curmudgeon, but just based upon this transcript excerpt, I'd likely start off thinking along the lines of a ninety-day license suspension, then maybe dialing that up or down depending on the remaining circumstances (and in particular, the degree of contrition expressed). I'd also be inclined to specify some onerous and creative public service requirements for Mr. Smith's path back to practice, [including] 200 hours as a volunteer ....

Both Mr. Smith and his law firm, Chicago-based McDermott Will & Emory, however, have nowhandledhisblunder in what I would readily characterize as exactly the right way — which is to say, they made no effort whatsoever to justify the unjustifiable or defend the indefensible, and instead they focused on retreat, repentance, and rehabilitation.

Mr. Smith voluntarily stepped down as head of his international mega-firm's bankruptcy department. (That's presumably subject to reassessment by him and his firm in the future, and I have no problem with that.) The lawyer they'd hired to defend Mr. Smith at the show-cause hearing asserted that Mr. Smith had "already completed The Florida Bar’s [online] professionalism course" that Judge Isicoff prescribed for him, and that he also had "agreed to complete at least 200 hours of pro bono work in Chicago." ("200 hours," my suggestion, right on the nose! Maybe they read my blog? Naw, it's an obvious number — ten percent of the presumptive target number of billable hours in a year for a big-firm partner like Mr. Smith.)

And Mr. Smith "also decided to make a financial contribution to the Center for Ethics and Public Service at the University of Miami law school," which by a "happy coincidence" is Judge Isicoff’s alma mater. That's effectively equivalent to a fine, except that he'll get a tax write-off, but I'm okay with that too. Without being too snarky, we can all agree that Mr. Smith will probably still be able to afford to dine out, at Micky D's or otherwise, to his heart's content after all this, but there will likely be personal, and appropriately private, financial consequences to him with respect to his MW&E partnership distributions that dwarf either his contribution or his tax write-off; I'd guess something with a low- to mid-six figure impact this year on what's almost certainly a seven-figure income. I'm sure this event has also inflicted at least seven-figure "soft costs" on MD&E in bad publicity and damage to the firm's reputation. And among the "hard costs," I'd be very surprised if MD&E didn't have to write off most or all of this particular client's bill for this matter, at a minimum; MD&E may have even found itself obliged to subsidize the cost of replacement counsel getting up to speed.

MW&E's managing partner (a/k/a "chairman") Harvey W. Freishtat — a deal lawyer, not a bankruptcy lawyer or a litigator — also flew down for the June 20th hearing in Miami from the firm's Boston office to apologize abjectly (one publication said Mr. Freishtat intended to "prostrate himself before the judge") for Mr. Smith's remark on behalf of the firm, and to confirm the firm's "commit[ment] to increase its pro bono involvement in South Florida" as a result of the incident. If you think that was a "cost-free transaction" in terms of intangible but hugely important intra-partnership relations, then you don't understand big law firms. Mr. Freishtat was surely there specifically, and appropriately, to convey the subtext message that this incident had grabbed the entire firm's attention, big-time, and that the firm's senior management was (quietly and mostly behind closed doors) doing what it thought appropriate by way of retribution and rehabilitation — and without the judge requiring it to do so.

The judge's reaction was unsurprising and appropriate, given the extraordinary and unqualified expression of contrition:

“There is no jurisdiction in the U.S. — including the district where Mr. Smith regularly practices — where the expression and tone Mr. Smith used on May 7 would fall in the bounds of acceptable behavior,” a solemn [U.S. Bankruptcy Judge Laurel Myerson] Isicoff said from the bench in front of a packed courtroom....

Isicoff said she hoped the widely reported incident would start a discourse in the legal community about the appropriate way for lawyers to address judges, clients and each other.

And with those remarks, she let Mr. Smith off the hook. There's no guarantee that Mr. Smith's own bar association back in Illinois won't also review the matter, and the story is still likely to haunt Mr. Smith from time to time in his future pro hac vice applications elsewhere (even if this hasn't resulted in a formal sanction that would have had to be disclosed as part of all such applications). But I doubt that there will be any further overt action taken by any other court or bar association. I congratulate Mr. Smith and MW&E on their crisis management; through it, they've turned what could have become a career-ending incident for Mr. Smith into something that can eventually be overcome and mostly forgotten — a "mere" black mark on his and the firm's reputation.

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The punishments are, of course, nearly at opposite ends of the spectrum — and altogether appropriately so. Nifong's punishments aren't over yet; he may do, and indeed he richly deserves, jail time, and he'll be financially ruined (to the extent, if any, that he's not already largely judgment-proof).

But Mr. Smith's story is non-trivial. One of the young lawyers (or law students; I'm not sure which) at the self-styled "legal tabloid" Above the Law writes of this week's hearing: "Looks like the fry guy got off relatively easy, and we've all learned something: don't stoop to middle school insults while arguing in front of a federal judge, especially if you're appearing pro hac vice." That is indeed the gist of it — although the "pro hac vice" aspect of the story is really a sideshow irrelevant to the moral of the tale, and indirect consequences that already probably ran into the seven- or eight-figure range by the time of the hearing are certainly "easy" only in a "relative" sense. "Judge Isicoff basically gave Smith a stern talking to," according to that blogger. The judge certainly could have been much less forgiving and much more harsh. And yet ....

Apropos of my original post, entitled "The 'David E. Kelley Contempt Fallacy': TV versus real-world contempt of court," the second commenter on the Above the Law post wrote: "but Alan Shore does it."

And othercommentersthere continue to trivialize Mr. Smith's misconduct and even to blame the judge. If they are lawyers, or students who intend to be, they have indeed missed the point, and that means they're likely to become the next illustration, when and if they ever venture into court themselves.

On the off chance that any of them might find their way here, let me be very blunt: If you really can't understand why Mr. Smith's misconduct constituted entirely unacceptable courtroom behavior in our profession, you definitely shouldn't be in it.

Instead, you're probably the sort of doofus who is eventually likely to become fodder for "legal tabloids," a disgraced ex-partner or ex-colleague, a walking malpractice lawsuit of the sort that no client ever deserves. You're the kind of guy who, after an event like Mr. Smith's, would have doubled-down and shown up at the show-cause hearing with all guns blazing, determined to prove that this judge was short a couple of chicken nuggets too. You really don't have happy career prospects in a profession that depends on real-world judgment and integrity. Go see if you can get a job as a flunky for David E. Kelley instead, maybe. You might survive in a world where pretend lawyers who flip smart-assed insults at judges are bulletproof stars, and the only consequences show up in the post-production laugh-track and, maybe, the overnight ratings.

Comments

The Illinois Supreme Court, through its administrative arm the Attorney Registration and Disciplinary Commission (http://www.iardc.org/), has exclusive authority to discipline attorneys in Illinois. It also imposes a draconianly-enforced obligation on attorneys to report attorney misconduct (think two-year suspension in a case of first impression for failure to snitch). So Mr. Smith is certainly in their radar. However, the complaint will not be available to the public until 60 days after service upon him.

On the other hand, the most onerous penalties are reserved for the protection of the public and the administration of justice. Not the protection of the dignity and prerogatives of judges. I expect at most censure, if that.

Dear Mr. Dyer: I think most of the folks in this world understand what you are saying. Trouble is, it's far too deferential, even obsequious, to that pack of insecure prima donnas known as judges, federal division. Granting that William Smith broke Attlee's Law: "If you're going to have to negotiate with someone tomorrow, don't start by insulting them today," why be so harsh to him? Laurel Smith's pomposity would inflate the HINDENBURG. She would never last in any situation requiring tact and steadiness under fire. Try to imagine her as a customer service rep for a computer firm. Unable to throw folks in jail on her say so, she'd blow up in a week.

Read the remarks she made that you quoted:

"There is no jurisdiction in the U.S. — including the district where Mr. Smith regularly practices — where the expression and tone Mr. Smith used on May 7 would fall in the bounds of acceptable behavior,” a solemn [U.S. Bankruptcy Judge Laurel Myerson] Isicoff said from the bench in front of a packed courtroom....

Isicoff said she hoped the widely reported incident would start a discourse in the legal community about the appropriate way for lawyers to address judges, clients and each other."

Do you really think such pomposity is "appropriate?" I think in ten years she will be holding out dirty rings for all counsel to kiss... What's the check on federal judges and their excesses? If you tell me that the Courts of Appeal watch the District Courts, and the Supreme Court watches the Courts of Appeal, I'll snicker and go back to reading about the Ninth Circuit's struggle with Judge Manuel Real and the Supreme Court's struggle with the Ninth Circuit on execution stays. (For Real/9th Circuit: go here:

http://www.law.com/regionals/ca/judges/usdistrict/real.htm

For 9th Circuit/Supremes, see Edward Lazarus's book CLOSED CHAMBERS)

I'm also bothered by your curmudgeonly attitude toward Smith. Compare it to the Nifong case. Now that Iron Mike is down, everyone is piling on. But what about the rest of the Durham District Attorney's office? Where were all the assistant DAs when Iron Mike was on TV, spraying gasoline on the lacrosse team and flicking matches at them? What about the pliable judges in Durham County who doubtless insist on their own dignity, but somehow can't stop Iron Mike from railroading. Much of Nifong's conduct becomes easier to understand if you wonder: Has he been doing this for years on a smaller scale? And getting away with it?

Compared to Nifong and his legal enablers, Smith has been hit far harder---at least in the pocketbook, which seems to be the dominant concern.

I don't doubt that any judge or assistant DA who did yell about what Nifong was doing would be making a "career ending" move. Is that the worst thing in the world? I'd be interested in your opinion of Stephen Yagman, a lawyer who has tangled with Judge Real (see above link.) To be sure, Yagman has gotten too flamboyant for his own good, and is now off to the hoosegow for---what else---tax evasion. Yet to my mind, his career will likely contribute more to the United States than a hundred careerists, whose memoirs will all be titled ON THE MAKE: THE RISE AND RISE AND RISE AND RISE AND RISE OF A RICHPOWERFULINFLUENTIAL LAWYER
WITH MONEYMONEYMONEY AND THE FATTEST ROLODEX IN SIX STATES.

No sir, for me this particular post of yours has merely reinforced the wisdom of George Bernard Shaw's THE DOCTOR'S DILEMMA Act Two:

As an occasional witness to judicial imperialism, including the latest judicial limits on Libby's ability to defend, I suspect the comment may well have been deserved. Judicial arrogance needs occasional pruning.

By telling the judge that her previous ruling againt his client -- AND the judge personally -- were dumb or crazy, was Mr. Smith perhaps trying to get the judge to lose her cool so as to get the case reassigned to another judge? Was he hoist on his own petard?

I actually read the transcript, (pages 19-20 especially; appreciate the link) and I wonder if Mr. Smith (whom I have never met or heard of) was really saying that the SALE (which he was trying to say was unlikely to ever close)was a few fries short of a Happy Meal, not the JUDGE herself. Note that his offending statement passed without comment both when he made it and for the balance of the hearing (although perhaps it drew untranscribed laughter, requiring the Judge to tell him to "proceed," and perhaps it resulted in the Judge's comment that his client's violation of the bankruptcy stay was "arrogant"). Nonetheless, a good lesson learned. What is acceptable in a conference room isn't necessarily acceptable in the Courtroom. Although, I do think that attempts at Courtroom humor are better received (or forgiven) in your home Court than when a guest in another jurisdiction.

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